Citation Nr: 1315864 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 97-03 045 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for Meniere's syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1971. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Nashville, Tennessee. The case was remanded by the Board for additional development in November 1998, July 2000, September 2003, and November 2009. FINDINGS OF FACT 1. Meniere's disease was not manifest or noted during service or within one year of separation. Meniere's disease is not attributable to service. 2. Meniere's disease is not caused or aggravated by a service connected disease or injury. CONCLUSIONS OF LAW 1. Meniere's disease was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. Meniere's disease is not proximately due to or aggravated by a service connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, a June 2007 letter informed him about VA's duty to assist him with obtaining evidence in support of his claims. It also explained what the evidence needed to show to establish service connection for a claimed disability and explained the way ratings and effective dates are established for service connected disabilities. The Veteran's claim was thereafter readjudicated, most recently in November 2012. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, private treatment records, and lay statements from the Veteran, friends, and family members. It is noted that at various junctures the Veteran refers to a February 1970 treatment record that reportedly shows that he was hospitalized for vertigo in service, and at least one examiner claims to have seen this record. Although this record is frequently mentioned, it is not in the claims file. This case has been pending for nearly two decades and the Veteran has been given numerous opportunities to submit a copy of this document if it exists. He has not done so. The Board also notes that another treatment record referenced by the Veteran as showing a complaint of vertigo actually does not reflect such a complaint. The Veteran was provided with an adequate VA examination in July 2012. He also had prior examinations. The July 2012 examination satisfied the instructions that were set forth in the November 2009 Board remand. The Board finds that VA satisfied its duties pursuant to the VCAA in this case. Service connection The Veteran claims that his Meniere's disease is related to his service or his service connected bilateral sensorineural hearing loss. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including organic diseases of the nervous system such as Meniere's syndrome, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis when a disability is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). Additionally, any increase in severity of a non-service connected disease or injury that is proximately due to, or the result of, a service connected disability, will be service connected. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A nexus to service is usually established by medical evidence. However, in the case of chronic diseases set forth in 38 C.F.R. § 3.309, a nexus may also be established through evidence of continuity of symptoms. The Veteran's service treatment records do not show a diagnosis of, or treatment for, Meniere's syndrome or symptoms that are associated with Meniere's syndrome such as dizziness or vertigo. The Veteran later contended that a November 1970 entry in his service treatment records documented vertigo, in fact that note indicates only nausea, a headache, and a fever, with no mention of vertigo. He also contended that a February 1970 note documented these symptoms but the service treatment records do not contain a note from that date. At his separation examination in May 1971 the Veteran's ears and neurologic systems were found to be normal. A notation from the Veteran in the "notes" section of the examination worksheet says, "I am extremely happy because of my new status. My health shows it." There is no mention of dizziness, vertigo, or Meniere's syndrome. In May 1990 the Veteran reported that he was experiencing hearing loss which he felt led to dizziness, headaches, and loss of equilibrium. He was first examined by VA in June 1990 at which time it was noted that there was no history of Meniere's syndrome. Examination of the ears was normal. The diagnosis was bilateral hearing loss with tinnitus. A VA audiometric examination in June 1990 indicated high frequency hearing loss with tinnitus and vertigo. At that time, the Veteran complained of vertigo that had been present for the past six months. He had constant tinnitus when he was dizzy and the sound increased as his dizziness increased. The dizziness increased with manual labor. Episodes lasted from two minutes to an hour and a half depending on his activity level. He was taking medication for this but it made him very tired. He had positional nystagmus in four of the positions tested with normal caloric responses. In November 1990 the Veteran claimed that his service treatment records showed that he was treated for nausea, vertigo, and headaches on two separate occasions in service. As previously noted, review of the actual service treatment records does not show this. He wrote that he had a longstanding history of vertigo and hearing loss which went back to February 1970. VA treatment records reflect that the Veteran was diagnosed with Meniere's disease in or around 1990. A May 1990 treatment record indicated that the Veteran reported the recent onset of vertigo along with an increase in tinnitus. Another May 1990 treatment record reflected that the Veteran reported vertigo that onset a few years ago. July and October 1990 treatment records reflect that the Veteran told his health care provider that he had vertigo while he was in Vietnam. In connection with an earlier claim than the one at issue here, the Veteran testified at a hearing that was held at the RO in March 1991. At that time the Veteran reported that he had general malaise and felt a constant spinning motion. He went to the VA medical center and was told he had vestibular dysfunction and he was prescribed medication. He stopped working because of his vertigo symptoms. He testified that he could not work more than a few hours without getting nauseated. The Veteran contended that there were two documented instances of vertigo in the service treatment records in February 1970. They went off the record and looked for these records, and it was noted that the decision review officer was unable to locate the February 1970 record referenced by the Veteran. The Veteran submitted an October 1989 article about Meniere's disease. It explained that Meniere's disease was a symptom complex of episodic vertigo, tinnitus, fluctuating hearing loss, and aural pressure. Vertigo may come on suddenly and last for hours or days. The course of Meniere's disease varies; some people will have only one attack and never be bothered again, another group of people may have an initial episode followed by a symptom free period which lasts many years, symptoms then return and can be quite sporadic. More typically, there are repeated bouts of vertigo, tinnitus, and hearing loss. Meniere's disease can affect one or both ears and some cases may only involve vertigo symptoms. A July 1994 affidavit from the Veteran's mother states that after service the Veteran had problems with his ears and would complain about ear pain and dizziness, and the dizziness persisted over time. Undated letters from the Veteran's friends from after service indicated that the Veteran experienced dizziness and imbalance. He told one of his friends that this was due to his service in Vietnam. The Veteran was given an audiological examination in January 1994. At that time the Veteran reported that he was diagnosed as having bilateral Meniere's disease and stated that he started having hearing difficulties in 1971, while he was in Vietnam. He was also afforded a general medical examination, at which time he reported he was unable to work due to Meniere's syndrome. At that time he reported that in February 1970 he was hospitalized for 24 hours for vertigo. He experienced several incidents of nausea and vertigo while he was in Vietnam. The examiner diagnosed "completely disabling" Meniere's disease. The examiner opined that it was as likely as not that the prodromal symptoms of vertigo, nausea, and spatial disorientation experienced during his active duty service prior to, during, and after his military tour in Vietnam marked the onset of his Meniere's disease. There are photocopies of the Veteran's service treatment records in the claims file behind this examination but they do not show any treatment for vertigo in February 1970 or at any other time. The Veteran was again examined by VA in December 1998. At that time the Veteran told the examiner that he was diagnosed with Meniere's disease in 1994 but had problems since 1971. At that time he reported dizziness that occurred every day. He said that the first episode of dizziness was in 1970. The report states that the Veteran showed documentation that he was hospitalized for vertigo and nausea in February 1970. However, this documentation is not in the claims file. In a letter received in June 2000, the Veteran again claimed that there was a service treatment record showing treatment for vertigo in February 1970. However, he did not send a copy of the record and, if the record actually exists, this failure is inexplicable given his numerous attempts to get VA to recognize the existence of this record. He makes vague allegations that VA removed the treatment record from the claims file, but offers no evidence to back this up and there is no basis to believe that any evidence was removed from the claims file prior to the adjudication of this claim. The Veteran submitted an August 2002 opinion from a Mexican doctor to the effect that he had Meniere's disease from 1970, depression, hearing loss, and tinnitus. He opined that the evidence suggested a relationship between Meniere's disease and the Veteran's Vietnam War service. However, he did not explain what documents he reviewed or how he came to this conclusion. Additionally, there is no credible evidence that Meniere's disease onset in 1970. The RO attempted to obtain a reexamination of the Veteran but he was unable to be contacted to schedule the examination. The Veteran submitted an October 2007 opinion from another Mexican doctor that his Meniere's disease had quite possibly developed since military service; the Veteran has been receiving treatment and the symptomatology hasn't stopped. Again, it is unclear what evidence was reviewed in forming this opinion which, additionally, is speculative. A June 2010 examination indicated that the Veteran had vestibular paralysis but did not indicate the cause. The Veteran was reexamined by VA in July 2012. The examiner noted that the claims file and extensive four volume medical and service records were carefully reviewed. They did show that the Veteran's hearing was normal at entry and at discharge he had a high frequency sensorineural hearing loss. He could find no evidence of vertigo in the Veteran's service treatment record. There was one entry in November 1970 where it was mentioned that he had nausea and headache but the service treatment record itself did not indicate that there was associated vertigo, and this was not a concern during the exit physical examination in 1971. Medical history indicated that the Veteran started having episodes of vertigo around 1988 and had continued problems since that time. His contention is that his high frequency hearing loss is the source of his vertigo problems. He had a considerable amount of testing over the years with vestibular testing and audiometric testing. However, these subsequent findings are not significant to his claim since there is no evidence that he had any of the vertigo problems during his active duty military time. A physical examination of the ears was performed. The examiner opined that while the Veteran certainly does have a problem with unsteadiness at this time, it is less likely than not that this is related to the hearing loss and tinnitus that he sustained during his active military service. The evidence does not show that it at least as likely as not that Meniere's disease onset during or was caused or made worse by service or a service connected disability, including sensorineural hearing loss. While the Veteran claims that he experienced vertigo in service, there is no objective evidence of this. While the Veteran repeatedly references a February 1970 treatment record, and one examiner claims to have seen this record, it is not in the claims file and the Board does not have a copy of it. Notably, the Veteran also claimed that a November 1970 entry in his service treatment records documented vertigo when in fact there was no mention of vertigo at all at that time. The Veteran's misrepresentation of the November 1970 entry does not lend credence to his report that there is a service treatment record showing hospitalization for vertigo in February 1970, nor does his failure to produce this document over the many years that this case has been pending despite clear notice that the document was not in the claims file. Moreover, even if this was the case, there is no indication of repeated complaints in service or for approximately 20 years after service and there were no complaints or findings on the discharge examination in 1971. As previously noted, both the ears and neurological systems were found to be normal at that examination, and the Veteran wrote a statement indicating that he was pleased with his health at that time. This is inconsistent with his reports of repeated episodes of vertigo in service. VA records from May and June 1990 reflect that the Veteran reported the recent onset of vertigo, although in subsequent records he claimed that vertigo onset in Vietnam. The Veteran's allegations are not credible. It is clear that the Veteran is competent to report that he had vertigo and when it started. However, competency and credibility are different matters. The Veteran has been an inconsistent historian. At times he reported onset of vertigo six months before an evaluation in 1990, years after service. He had also reported an in service onset. However, Meniere's was not noted or identified during service. The ears and neurologic system were normal at separation (other than hearing loss). We also note that his report that he was happy and his health showed it is wildly inconsistent with someone with vertigo or Meniere's disease. Based on the record, Meniere's was not noted, diagnosed, or identified during service. Furthermore, a medical professional had determined that the in service evidence was not consistent with the characteristic manifestations of Meniere's disease. Therefore, 38 C.F.R. § 3.303(b) is not applicable. To the extent that the Veteran attempts to establish a lay nexus to service pursuant to 38 C.F.R. § 3.303(a) we find that he has been an inconsistent historian and is not credible. His report of in service symptoms and ongoing symptoms are not credible. Furthermore, there is no credible proof of Meniere's disease within one year of service. While the Veteran submitted physicians' statements to the effect that his Meniere's disease was possibly related to his service, apart from being speculative, they were based on a history given by the Veteran and not the objective evidence in the service treatment records and post-service treatment records. Moreover, the examiner who in 1994 opined that the Veteran's Meniere's disease was at least as likely as not service connected based his conclusion on the Veteran's assertions that he experienced vertigo throughout his military service but there is absolutely no credible evidence that the Veteran experienced repeated attacks of vertigo in service, either before, during, or after his Vietnam service. Since this opinion is based on an erroneous factual predicate, it is of limited probative value. In contrast, the VA examiner carefully reviewed the entire claims file and found no evidence of vertigo in service. He dated the onset of vertigo to 1988, more than 15 years after the Veteran's service. He also opined that the Veteran's Meniere's disease was not due to his service connected hearing loss or tinnitus. While the Veteran may believe that there is such a relationship, he lacks the medical expertise that is necessary in order to make such an association. While service connection may also be granted in Meniere's syndrome (an organic disease of the nervous system) manifested to a compensable degree within one year of the Veteran's discharge from service, there is no evidence that this is the case here. Meniere's disease was diagnosed many years after service and the Veteran initially reported recent onset of vertigo in 1990, with onset six months earlier. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for Meniere's disease is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs